HSBC Bank USA, N.A. v. Sene

Summary

The Appellate Division, Second Department, modified and otherwise affirmed an order in a mortgage foreclosure action. The court held that HSBC failed to establish prima facie standing to foreclose and failed to demonstrate compliance with applicable notice requirements, but established that most of the defendant's affirmative defenses and counterclaims were waived, meritless, or conclusory.

Holdings

1. HSBC failed to establish prima facie standing because the affidavit's assertion that the note had been physically delivered was not based on personal knowledge and was unsupported by documentary evidence, the pooling and servicing agreement materials did not include the mortgage loan schedule, and the plaintiff did not establish standing through a written assignment of the mortgage.
2. HSBC failed to establish prima facie compliance with the required 90-day notice and the mortgage's notice-of-default provisions.
3. HSBC was not entitled to summary judgment on the complaint insofar as asserted against Sene or to an order of reference because it failed to meet its prima facie burdens concerning standing and notice compliance.
4. HSBC was entitled to summary judgment dismissing Sene's affirmative defenses other than those alleging lack of standing and failure to comply with conditions precedent, and dismissing her counterclaims.

Questions Presented

1. Whether HSBC established prima facie standing to commence the mortgage foreclosure action.
2. Whether HSBC established prima facie compliance with statutory and contractual notice requirements preceding foreclosure.
3. Whether HSBC was entitled to summary judgment dismissing Sene's affirmative defenses other than lack of standing and failure to comply with conditions precedent.
4. Whether HSBC was entitled to summary judgment dismissing Sene's counterclaims.

Disposition

modified_and_affirmed